Anjineyya S/O Jambayya Tayappa vs Basappa S/O Thimmappa And Ors
2022 Latest Caselaw 4863 Kant

         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

      DATED THIS THE 16TH DAY OF MARCH 2022

                         BEFORE

      THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

         M. F. A. NO.201294 OF 2016 (MV-I)

BETWEEN:

ANJINEYYA
S/O JAMBAYYA TAYAPPA
AGE:31 YEARS, OCC:AGRICULTURE
R/O. CHANDRABANDA
TQ & DIST:RAICHUR-584101
                                         ...APPELLANT

(BY SRI. SACHIN M MAHAJAN, ADV.)

AND

1.    BASAPPA
      S/O THIMMAPPA
      AGE:MAJOR, OCC:DRIVER OF AUTO RICKSHAW
      BEARING NO. KA/36/A/2957
      R/O. PARKAMDODDI SHAKWADI ROAD,
      RAICHUR-584101

2.    K SURESH
      S/O VENKATESH
      AGE: MAJOR OCC:OWNER OF AUTO RICKSHAW
      BEARING NO. KA/36/A/2957
      R/O GANJALLI
      TQ & DIST:RAICHUR-584101
                             2



3.   THE AUTHORIZED SIGNATORY
     IFFCO TOKIO GNERAL INSURANCE CO.LTD
     OPP. SGRI LAXMI TEMPLE
     DAJIBANPET HUBLI-580029
                                       ...RESPONDENTS

(BY SRI. SUDHARSHAN M., ADV. FOR R3
    V/O DATED 19.08.2021, NOTICE TO R1 & R2 DISPENSED)


     THIS MFA IS FILED U/S. 173 (1) OF MV ACT, PRAYING TO
SET ASIDE THE JUDGMENT AND AWARD DATED 05.03.2016
PASSED BY THE II ADDL. DIST. AND SESSIONS JUDGE AND
ADD. MACT AT RAICHUR, IN MVC NO.86/2015 AND ENHANCE /
GRANT JUST AND REASONABLE COMPENSATION BY ALLOWING
THE CLAIM PETITION.

     THIS MFA COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

This appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (hereinafter referred to as 'the Act',

for short) has been filed by the claimant being

aggrieved by the judgment dated 05.03.2016 passed

in MVC No. 86/2015 by the Motor Accident Claims

Tribunal.

For the sake of convenience, parties are referred

to as per their ranking before the Claims Tribunal.

Appellant is the claimant and respondents are the

respondents before the Tribunal.

2. Facts giving rise to the filing of the appeal

briefly stated are that on 12.05.2014, the claimant

was proceeding on motorcycle along with a pillion

rider through Pothgal road, near Palkumdoddi Nali, on

Shakawadi to Palkamdoddi road, at about 5 p.m, an

auto rickshaw bearing registration No.KA-36/A-2957

being driven by its driver at a high speed and in a

rash and negligent manner, dashed to the vehicle of

the claimant. As a result of the aforesaid accident,

the claimant sustained grievous injuries and was

hospitalized.

3. The claimant filed a petition under Section

166 of the Act seeking compensation. It was pleaded

that he spent huge amount towards medical

expenses, conveyance, etc. It was further pleaded

that the accident occurred purely on account of the

rash and negligent driving of the offending vehicle by

its driver.

4. The respondents No.1 and 2 did not appear

before the Tribunal inspite of service of notice and

were placed ex-parte.

Respondent No.3 filed written statement denying

the averments made in the claim petition. It is

contended that the accident occurred due to rash and

negligent driving of the motor cycle. Hence, sought

for dismissal of the claim petition.

5. On the basis of the pleadings of the parties,

the Claims Tribunal framed the issues and thereafter

recorded the evidence. The claim petition filed by the

pillion rider was clubbed by the Tribunal and common

evidence was recorded. The claimant examined

himself as PW-1 and got marked Ex.P1 to Ex.P22.

The official of respondent No.3 was examined as RW-1

and got marked Ex.R1 to Ex.R4. The Claims Tribunal,

after recording the evidence and considering the

material on record, held that the accident took place

on account of rash and negligent driving of the

offending vehicle by its driver, as a result of which,

the claimant sustained injuries. The Tribunal further

held that the claimant is entitled to a compensation of

Rs.79,600/- along with interest at the rate of 6% p.a.

and directed the respondent No.3 to deposit the

compensation amount along with interest. Being

dissatisfied with the compensation awarded by the

Tribunal, the claimant has filed the present appeal

seeking for enhancement of compensation amount.

6. Heard learned counsel for the claimant and

learned counsel for the respondent No.3.

7. The learned counsel for the claimant

submits that the accident is of the year 2014. In the

absence of income proof, the Tribunal ought to have

taken the notional income as per the guidelines issued

by the Karnataka State Legal Services Authority

('KSLSA' for short). As per the said guidelines, the

notional income has to be taken at Rs.7,500/- p.m.,

wherein the Tribunal has taken as Rs.6,000/-, which is

on a lower side.

Secondly, PW-2, the doctor has stated in his

evidence that the claimant has suffered permanent

disability of 15% which is on a lower side.

Hence, on these grounds, sought for allowing the

appeal.

8. Per contra, learned counsel for respondent

No.3, Insurance Company supports the impugned

judgment and award passed by the Tribunal. He

further submits that the compensation awarded by the

Tribunal is just and proper. Hence, sought for

dismissal of the appeal.

9. Perused the records and considered the

submissions of learned counsel for the parties.

10. The point that arise for consideration is with

regard to quantum of compensation.

11. It is not in dispute that the accident has

occurred due to rash and negligent driving of the

offending vehicle by its driver. Further, in order to

prove that the accident occurred due to rash and

negligent driving of the driver of the offending vehicle,

the claimant has produced copy of FIR and charge-

sheet marked as Ex.P1 and Ex.P2. Ex.P2 discloses

that the accident occurred due to rash and negligent

driving of the driver of the offending vehicle.

The claimant has not produced any evidence

with regard to his income. Therefore, the notional

income has to be assessed as per the guidelines

issued by the KSLSA. Since the accident has taken

place in the year 2014, the notional income has to be

taken at Rs.7,500/- p.m.

In order to prove the disability, the claimant has

examined the doctor as PW-2. P.W.-2 has stated that

he has examined the claimant on 06.11.2015 and on

examination, he found that there is pain and

tenderness over the right wrist and there is deformity

present and the ROM of right wrist flexion is around 0-

10 degrees and extension is around 0-15 degrees and

radial and ulnar deviation are restricted. The doctor

has stated in his evidence that the claimant has

suffered permanent disability of 15% to the whole

body, but the Tribunal has taken the permanent

disability at 5%. Therefore, taking into consideration

the deposition of the doctor, PW-2 and the disability

certificate, the whole body disability is taken at 8%.

The claimant is aged about 36 years at the time of the

accident and multiplier applicable to his age group is

'15'. Thus, the claimant is entitled for compensation of

Rs.1,08,000/- (Rs.7,500 x 12 x 15 x 8%) on account

of 'loss of future income'.

Since the income of the claimant is enhanced to

Rs.7,500/- per month, the claimant is entitled for

compensation of Rs.22,500/- (Rs.7,500 x 3 months)

under the head 'loss of income during laid up period'.

Compensation towards pain and suffering is

enhanced to Rs.30,000/-. The medical expenses

awarded by the Tribunal is maintained. Compensation

towards conveyance, diet and miscellaneous expenses

is enhanced to Rs.15,000/-.

Due to the accident, the claimant has suffered

grievous injuries and he has to suffer with the

disability stated by the doctor throughout his life.

Considering the same, an amount of Rs.25,000/- is

awarded towards 'loss of amenities'.

Thus, the claimant is entitled to a total

compensation of Rs.2,01,100/-.

12. Accordingly, the appeal is allowed in part.

Judgment and award passed by the Tribunal dated

05.03.2016, is modified. The claimant is entitled to a

total compensation of Rs.2,01,100/- along with

interest at the rate of 6% p.a. from the date of filing

of the claim petition till the date of realization, as

against Rs.79,600/- awarded by the Claims Tribunal.

Respondent No.3, Insurance Company is directed to

deposit the enhanced compensation amount of

Rs.1,21,500/- along with interest, within a period of

eight weeks from the date of receipt of copy of this

judgment.

To the aforesaid extent, the judgment of the

Claims Tribunal is modified.

The tribunal is directed to release the enhanced

compensation amount in favour of the claimant.

SD/-

JUDGE

RD